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HomeMy WebLinkAbout07-30-20 Decision 4849-Wise Living-834 Route 28 TCr0 Y it TOWN OF YARMOUTH BOARD OF APPEALS DECISION FILED WITH TOWN CLERK: July 30, 2020 PETITION NO: #4849 HEARING DATE: July 23, 2020 PETITIONER: Wise Living Development LLC OWNERS: Maclyn LLC, 834 Main Street Realty Trust, and Baker Frank LLC PROPERTIES: 822 Route 28, 834 Route 28 and 30 Frank Baker Road, South Yarmouth, MA Map 33/Parcel 70.1 Map 41/Parcel 12 Map 41/Parcel 11.1 Zoning District: B2, HMODI, ROAD, and VCOD VC2 Title References with the Barnstable County Registry of Deeds: Book 28032, Page 179 Lot 1 on Plan in Book 653, Page 1 Book 25968, Page 22 Lot I on Plan in Book 41, Page 125 Book 32123, Page 16 Lot 2 on Plan in Book 653, Page 1 MEMBERS PRESENT AND VOTING: Chairman Steven DeYoung, Sean Igoc, Dick Martin, 'rom Nickinello, and Susan Brita Notice of the hearing has been given by sending notice thereof to the Petitioner and all those owners of property as required by law, and to the public by posting notice of the hearing and publishing in The Register, the hearing opened and held on the date as stated above. The Petitioner is Wise Living Development LLC. The Property, located in the B2, HMOD I, ROAD, and VCOD VC2 Zoning Districts, is currently the site of the Irish Village Hotel and restaurant complex, a commercial building containing three rental spaces, and a vacant parcel of land. The Petitioner was represented by Andrew Singer, attorney, and Kieran Healey, engineer. The Petitioner has received use Special Permit approval from the Yarmouth Planning Board to redevelop the Property into a mixed -use project consisting of senior housing, medical offices, and commercial and office use as follows: A Wise Living Retirement Community for senior housing with 120 units (104 studios and 16 one -bedroom units), common resident dining facility, and outdoor swimming pool; 2. A leased medical complex (maximum of two (21 doctors and related support staff) plus an exercise/rehabilitation facility and wading pool; and Continuation of existing uses in the existing commercial building. The Petitioner has also received approval from the Yarmouth Board of Appeals for certain site redevelopment constraints (in -lot trees, signs, and sidewalk waiver). The Petitioner had previously requested additional design relief for the two buildings to be re -used and withdrew such requests to further review the design. To this end, the Petitioner has re -designed the buildings to reduce and alter the type of relief requested and has applied to the Board in this case for a: 834 Route 28 Building: Special Permit in accordance with Section 414.6.4 of the Yarmouth Zoning By -Law ["Zoning By -Law"] and M.G.L. Chapter 40A, Sections 6 and 9, in order to construct a bump -out addition to the east side of the existing building with a reduced side yard setback; and 822 Route 28 Building: Variance in accordance with Section 102.22 of the Zoning By - Law and M.G.L. Chapter 40A, Section 10, from Section 414.8, including Sections 414.8.3, 414.9.5, and 414.8.6, in connection only with the balconies and patios of the residential, senior housing units on the east and west sides of the building. In its prior filing, the Petitioner had requested Variance relief for seven, total design aspects of the two buildings to be re -used. In response to Board member concerns, the Petitioner revised the plans to eliminate four aspects of the previously -requested relief and has converted one request to the Special Pennit, as follows: 1) in connection with the 822 Route 28 building, an additional bump -out was added on the south side facing Route 28 and two additional enclosures were added on the cast and west sides, respectively, enclosing entrances, all in compliance the building modulation requirements of the Zoning By -Law; and 2) in connection with the 834 Route 28 building, a new, enclosed entrance has been added on the west side of the building in compliance with the building modulation requirements of the Zoning By -Law, and the requested, new bump -out on the east side of the building can be allowed by Special Permit. The proposal before the Board in this case has been reviewed by Yarmouth Design Review Committee and Yannouth Planning Board for VCOD Site Plan Review. There was no correspondence in the file and no public comment at the hearing. The Petitioner submitted the following testimony in support of the Petition: Special Permit. In accordance with Section 414.6.4 of the Zoning By -Law and as set forth in Section 414.3.3 of the Zoning By -Law, the Board is authorized to grant the requested relief to construct a bump out on the east side of the 834 Route 28 Building within the side setback in order to comply with building modulation requirements: The Planning Board has issued a Site Plan Review Decision for the Proposal, and the redevelopment supports Mixed Use development, maintains and improves pedestrian access, provides on -site open space, and incorporates low impact design techniques; 2 In addition, the redevelopment provides a vehicular cross -connection between the properties to be combined and traffic demand management is provided through the Mixed Use in the two buildings, the side yard relief improves the appearance of the building and is safe and visually attractive, and is set back substantially from the front sidewalk and is partially screened by an existing fence to the east; and Finally, no undue nuisance, hazard or congestion will be created, there will be no substantial harm to the established or future character of the neighborhood or Town, the relief is consistent with the purposes and will conform to the provisions of Section 414 of the Zoning By -Law, the Yarmouth Architectural and Site Design Standards, and the Design Standards of Section 414.8 of the Zoning By -Law. Variance. In accordance with Section 102.2.2 of the Zoning By -Law and M.G.L. Chapter 40A, Section 10, the Board is authorized to grant the requested relief to alter only the design of the balconies and patios (open gable end porches/patios and porticos) along the east and west sides of the 822 Route 28 Building to the middle and rear of the Property away from Route 28: By not enclosing the outside balconies and patios on the east and west sides of the middle and rear portions of the 822 Route 28 Building and leaving them with railings as shown, the following benefits result: A. The residents' apartments will receive more sunlight and will not be dark; B. The residents will have safe, private, and personal spaces to sit outside throughout the year as weather conditions allow; C. The breathability and attractiveness of the apartments used for senior housing will be improved; D. Emergency, public safety access to the apartments from the outside of the building will be available as well as potential, alternative, future exterior access in response to Covid-19 and changing regulations, E. If enclosed, these small areas will become predominantly dead storage spaces without cooling in the summer or heating in the winter (even with sliders); F. The expense to condition the small, enclosed spaces and to add exterior walls, sliders, and additional structural construction under a literal enforcement of the Zoning By -Law will cost in the high six figures without substantively improving the appearance of the building; G. These two sides of the building are in the middle and rear of the Property and are not readily visible from Route 28; and H. The remainder of the redeveloped building will comply with all building modulation requirements of Section 414.8 of the Zoning By -Law. The front of the building facing Route 28 and the cast and west sides at the front portion of the building closest to Route 28 have been redesigned in complete conformance with the Zoning By -Law; Not granting the relief will result in a substantial financial or practical hardship to the Petitioner, this hardship is owing to unique circumstances relating to the historical, developed layout and nature of the existing structures and site infrastructure to be re -used on the property. The existing developed nature of the existing building makes complete compliance not practical or financially feasible. This is a large-scale redevelopment that will offer a needed senior housing option in the community. The building is in good shape and does not need to be razed and replaced as is often the case. Meeting these final building modulation provisions along the east and west sides of the middle and rear portions of the building will not only prevent the practical, beneficial results to the residents outlined above, but the cost to comply is prohibitive. The Massachusetts Appeals Court has found that excessive additional cost in similar circumstances can justify the grant of relief. In this instance, the proposal involves opportunity zone ownership. Creating the best redevelopment for the residents and the community is foremost. The additional costs for this portion of the building that are not readily visible from Route 28, in particular when they will demonstrably detract from the residential experience and could jeopardize the viability of the proposal, meet the Variance hardship standard and merit the grant of relief, and 3. Finally, for all of the reasons set forth in the Special Permit and Variance discussions above, the proposed relief may be granted without substantial detriment to the public good and without nullifying or substantially derogating from the intent or purpose of the Zoning By -Law. The proposal will not cause or contribute to any undue nuisance, hazard or congestion in the neighborhood, zoning district or Town, and there will be no substantial harm to the character of the neighborhood or Town. The proposal will provide needed services and residential opportunities in the Town. The Board members asked questions and discussed the existing and proposed changes to the design of the two buildings as well as the granting of Special Permit and Variance relief, respectively. Based on the above and additional testimony and discussion received at the public hearing, the Board took the following votes: Based upon findings that the proposal as presented as it relates to the east side of the 834 Route 28 building satisfies the Special Permit criteria set forth in the Zoning By -Law, including without limitation as specified in Sections 414.3.3 and 414.6.4 of the Zoning By -Law, and M.G.L. Chapter 40A, Chapter 40A, Sections 6 and 9, on a Motion by Mr. Nickinello and seconded by Mr. Martin, the Board voted five (5) in favor and none (0) opposed to grant a Special Permit to construct a bump -out addition to the east side of the existing building with a reduced side yard setback as shown on the plans; and 2. Based upon findings that the proposal as presented as it relates to the east and west sides of the 822 Route 28 building satisfies the criteria of Section 102.2.2 of the Zoning By -Law and M.G.L. Chapter 40A, Section 10, by promoting a safer, better design for the re -use of the existing building, on a Motion by Mr. Igoe and seconded by Mr. Nickinello, the Board voted five (5) in favor and none (0) opposed to grant a Variance from Section 414.8 of the Zoning By -Law, including Sections 414.8.3, 414.8.5, and 414.8.6, solely in connection with the open gable end porches/patios and balconies of the residential, senior housing units on the east and west sides of the building as shown on the plans. 4 No permit shall issue until 20 days from the filing of this decision with the Town Clerk. Appeals from this decision shall be made pursuant to MGL c40A section 17 and must be filed within 20 days after filing of this notice/decision with the Town Clerk. Unless otherwise provided herein, the Special Permit shall lapse if a substantial use thereof has not begun within 24 months. (See bylaw §103.2.5, MGL c40A §9) Unless otherwise provided herein, a Variance shall lapse if the rights authorized herein are not exercised within 12 months. (See MGL c40A§10). This Decision must be filed with the Barnstable County Registry of Deeds, Route 6A, Barnstable. Steven DeYoung, airman 5 COMMONWEALTH OF MASSACHUSETTS TOWN OF YARMOUTH rJ BOARD OF APPEALS Appeal #4849 Date: August 20, 2020 Certificate of Granting of a Special Permit and Variance (General Laws Chapter 40A, section 11) The Board of Appeals of the Town of Yarmouth Massachusetts hereby certifies that a Special Permit and Variance has been granted to: PETITIONER: Wise Living Development LLC OWNERS: Marlyn LLC, 834 Main Street Realty Trust, and Baker Frank LLC Affecting the rights of the owner with respect to land or buildings at: PROPERTIES: 822 Route 28, 834 Route 28 and 30 Frank Baker Road, South Yarmouth, MA Map 33/Parcel 70.1 Map 41/Parcel 12 Map 411Pareel 11.1 Zoning District: B2, HMOD1, ROAD, and VCOD VC2 Title References with the Barnstable County Registry of Deeds: Book 28032, Page 179 Lot 1 on Plan in Book 653, Page 1 Book 25968, Page 22 Lot 1 on Plan in Book 41, Page 125 Book 32123, Page 16 Lot 2 on Plan in Book 653, Page I and the said Board of Appeals further certifies that the decision attached hereto is a true and correct copy of its decision granting said Special Permit and Variance, and that copies of said decision, and of all plans referred to in the decision, have been filed. The Board of Appeals also calls to the attention of the owner or applicant that General Laws, Chapter 40A, Section 1 1 (last paragraph) and Section 13, provides that no Special Permit, or Variance or any extension, modification or renewal thereof, shall take effect until a copy of the decision bearing the certification of the Town Clerk that twenty (20) days have elapsed after the decision has been filed in the office of the Town Clerk and no appeal has been filed or that, if such appeal has been filed, that it has been dismissed or denied, is recorded in the Registry of Deeds for the county and district in which the land is located and indexed in the grantor index under the name of the owner of record or is recorded and noted on the owner's certificate of title. The fee for such recording or registering shall be paid by the owner or applicant. Steven S. DeYo ng, Chairman TOWN OF YARMOUTH 1146 ROUTE 28, SOUTH YARMOUTH, MASSACHUSETTS 02664-4451 Telephone (508) 398-2231 Ext. 1285, Fax (508) 398-0836 CERTIFICATION OF TOWN CLERK Town Clerk I, Susan M. Regan, Town Clerk, Town of Yarmouth, do hereby certify that 20 days have elapsed since the filing with me of the above Board of Appeals Decision #4849 that no notice of appeal of said decision has been filed with me, or, if such appeal has been filed it has been dismissed or denied. All appeals have been exhausted. Susan M. Regan Town Clerk